836 F.2d 721 (1st Cir. 1988), 87-1536, K.W. Thompson Tool Co., Inc. v. United States

Docket Nº87-1536.
Citation836 F.2d 721
Party NameK.W. THOMPSON TOOL COMPANY, INC., Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.
Case DateJanuary 14, 1988
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 721

836 F.2d 721 (1st Cir. 1988)

K.W. THOMPSON TOOL COMPANY, INC., Plaintiff, Appellant,

v.

UNITED STATES of America, Defendant, Appellee.

No. 87-1536.

United States Court of Appeals, First Circuit

January 14, 1988

Heard Nov. 6, 1987.

Page 722

David Shaughnessy with whom John Wall, Cullen & Wall, Boston, Mass., Steven Gordon and Shaheen, Cappiello, Stein & Gordon, Concord, N.H. were on brief, for plaintiff, appellant.

Howard S. Scher, Appellate Staff, Civ. Div., with whom Robert S. Greenspan, Appellate Staff, Civ. Div., Richard K. Willard, Asst. Atty. Gen., Washington, D.C., and Richard V. Wiebusch, U.S. Atty., Concord, N.H. were on brief, for defendant, appellee.

Before BOWNES and SELYA, Circuit Judges, and CAFFREY, [*] Senior District Judge.

BOWNES, Circuit Judge.

Plaintiff-appellant, K.W. Thompson Tool Company, Inc. (KWT), filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680, against the United States, the United States Environmental Protection Agency (EPA) and six individual former or present EPA employees, based upon alleged negligent acts and/or omissions of defendants in connection with a criminal prosecution instituted against KWT and three of its officers. With plaintiff's consent, the district court dismissed the EPA and EPA employees as defendants. The United States filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The district court found that one claim, Count III, did not fall within the terms of 28 U.S.C. Sec. 1346(b) and that the discretionary function exception to the FTCA, 28 U.S.C. Sec. 2680(a), barred the remainder of KWT's claims and granted the motion to dismiss. K.W. Thompson Tool Company, Inc. v. United States, 656 F.Supp. 1077 (D.N.H.1987). Plaintiff appeals the dismissal of its complaint. 1 We affirm.

I.

KWT is a New Hampshire corporation with its principal place of business in Rochester, New Hampshire. KWT primarily makes firearms, and in the course of its manufacturing discharges substances into a nearby ditch and lagoon which flow into the Cocheco River. Such discharges are regulated under both state and federal law.

Beginning in 1980, KWT had various contacts with the New Hampshire Water Supply and Pollution Control Commission (NHWSPCC) regarding its compliance with the environmental laws. As a result of an EPA notification of a violation, KWT, on

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November 12, 1982, applied to the EPA for a National Pollutant Discharge Elimination System (NPDES) permit which would establish discharge standards. The first application was returned for correction in February, 1983. KWT alleges it relied on information supplied by the EPA in preparing the answers that the EPA requested be changed. The revised application was submitted on or about April 1, 1983, and a preliminary NPDES permit issued on October 23, 1983. The final permit was issued on March 14, 1984.

After an investigation, the EPA initiated a criminal action against KWT. A fifty-count indictment, charging violations of federal environmental laws, was returned against KWT and three of its officers on March 18, 1985. We quote the district court's statement of the termination of the criminal proceedings:

On July 1, 1985, pursuant to a plea agreement, KWT pled guilty to Counts 4-18 (negligent discharge of pollutants into a water of the United States, in violation of 33 U.S.C. Secs. 1311(a) and 1319(c)(1)), Count 44 (disposal of hazardous substances without a permit, in violation of 42 U.S.C. Sec. 9603(c)), and Count 46 (failure to notify appropriate government agency of release of specified hazardous substances without a permit, in violation of 42 U.S.C. Sec. 9603(b)). In exchange for these guilty pleas, the United States dismissed with prejudice Counts 1, 2, 3, 19-43, 45, and 47-50 with respect to KWT, and all counts were dismissed with respect to the corporate officers. KWT was ordered to pay a total fine of $75,000 and was placed on probation for a period of one year or until the fine was paid. KWT contends that its decision to plead guilty to the above-detailed counts was a "business judgment" made to avoid loss of its federal license to manufacture firearms and to avoid further expense and loss of employee time and effort. KWT does not concede that it was, in fact, guilty of these or any of the charges on which it was indicted.

656 F.Supp. at 1080-81. The FTCA suit followed. 2 The government has not asserted that the guilty plea is a collateral estoppel bar to any of the issues in this action. See generally, 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 4474 at 759-761 (Supp.1987). The only issue, therefore, is the application of the discretionary function exception.

II.

The FTCA provides:

(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office of employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. Sec. 1346(b).

The discretionary function exception states:

The provisions of this chapter and section 1346(b) of this title shall not apply to--

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the

Page 724

Government, whether or not the discretion involved be abused.

28 U.S.C. Sec. 2680(a).

Three Supreme Court cases have addressed the issue of the application of section 2680(a) to an FTCA action. The first is Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The case arose out of an explosion of two ships which leveled the port of Texas City, Texas, and killed and injured many people. Fertilizer had been loaded aboard two ships for shipment to Europe under a program instituted by the United States to increase the food supply in areas under post-war military occupation. "This fertilizer had been produced and distributed at the instance, according to the specifications and under the control of the United States." Id. at 18, 73 S.Ct. at 956. The fertilizer, which had been sold to the French Government had been loaded on the ships by independent stevedores hired by the French. The theory of liability was

that the Federal Government had brought liability on itself for the catastrophe by using a material in fertilizer which had been used as an ingredient of explosives for so long that industry knowledge gave notice that other combinations of ammonium nitrate with other material might explode. The negligence charged was that the United States, without definitive investigation of FGAN [Fertilizer Grade Ammonium Nitrate] properties, shipped or permitted shipment to a congested area without warning of the possibility of explosion under certain conditions.

Id. at 23, 73 S.Ct. at 961.

The Court focused on the words of section 2680(a) and its legislative history. It first noted that its decisions "have interpreted the Act to require clear relinquishment of sovereign immunity to give jurisdiction for tort actions." Id. at 31, 73 S.Ct. at 965. This is followed by the statement: "One only need read Sec. 2680 in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions." Id. at 32, 73 S.Ct. at 966. The Court explained that the discretion protected by section 2680(a) was "the discretion of the executive or the administrator to act according to one's judgment of the best course...." Id. at 34, 73 S.Ct. at 967. The holding of the Court is that the discretionary function exception applies to subordinates as well as policymakers:

It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the "discretionary function or duty" that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of Sec. 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superior, exercising, perhaps abusing, discretion.

Id. at 35-36, 73 S.Ct. at 968 (footnotes omitted). The reach of the holding to subordinates was somewhat curtailed by the statement that "[t]he decisions held culpable were all responsibly made at a planning rather than operational level...." Id. at 42, 73 S.Ct. at 971. There was a trenchant dissent by Justice Jackson, joined by Justices Douglas and Clark.

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  • 606 F.Supp.2d 160 (D.Mass. 2009), C. A. 08-30214, Wilson v. Executive Office of Health and Human Services
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 1 Abril 2009
    ...and are stated in a light most favorable to Plaintiff, the party opposing dismissal. See K.W. Thompson Tool Co. v. United States, 836 F.2d 721, 726 (1st Cir.1988). In summary, Plaintiff, a Level 1 worker, alleges that between July 10, 2007, and March 12, 2008, there were three events for wh......
  • 741 F.Supp. 306 (D.Mass. 1990), Civ. A. 83-4214, Pierre v. United States
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 11 Julio 1990
    ...were not bound by strict regulatory directives. This case is similarly distinguishable from K.W. Thompson Tool Co., Inc. v. United States, 836 F.2d 721 (1st Cir.1988), the most recent First Circuit case analyzing the discretionary function exemption. In that case, the breaches of duty alleg......
  • 758 F.Supp. 81 (D. Puerto Rico 1991), Civ. 88-1691, Attallah v. United States
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • 4 Febrero 1991
    ...federal employees is barred by the discretionary function exception. In K.W. Thompson Tool Co., Inc. v. United States, 836 F.2d 721 (1st Cir.1988), the court affirmed dismissal of a complaint alleging, inter alia, that four employees and the administrator of the Environmental Protection Pag......
  • 856 F.2d 1026 (8th Cir. 1988), 87-1634, McMichael v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 25 Agosto 1988
    ...applies and accordingly the district court was without subject matter jurisdiction. See K.W. Thompson Tool Co., Inc. v. United States, 836 F.2d 721, 726 n. 3 (1st Cir.1988). It is true that the district court did not reconsider whether the discretionary function applied. However, the court ......
  • Request a trial to view additional results
39 cases
  • 606 F.Supp.2d 160 (D.Mass. 2009), C. A. 08-30214, Wilson v. Executive Office of Health and Human Services
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 1 Abril 2009
    ...and are stated in a light most favorable to Plaintiff, the party opposing dismissal. See K.W. Thompson Tool Co. v. United States, 836 F.2d 721, 726 (1st Cir.1988). In summary, Plaintiff, a Level 1 worker, alleges that between July 10, 2007, and March 12, 2008, there were three events for wh......
  • 741 F.Supp. 306 (D.Mass. 1990), Civ. A. 83-4214, Pierre v. United States
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 11 Julio 1990
    ...were not bound by strict regulatory directives. This case is similarly distinguishable from K.W. Thompson Tool Co., Inc. v. United States, 836 F.2d 721 (1st Cir.1988), the most recent First Circuit case analyzing the discretionary function exemption. In that case, the breaches of duty alleg......
  • 758 F.Supp. 81 (D. Puerto Rico 1991), Civ. 88-1691, Attallah v. United States
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • 4 Febrero 1991
    ...federal employees is barred by the discretionary function exception. In K.W. Thompson Tool Co., Inc. v. United States, 836 F.2d 721 (1st Cir.1988), the court affirmed dismissal of a complaint alleging, inter alia, that four employees and the administrator of the Environmental Protection Pag......
  • 856 F.2d 1026 (8th Cir. 1988), 87-1634, McMichael v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 25 Agosto 1988
    ...applies and accordingly the district court was without subject matter jurisdiction. See K.W. Thompson Tool Co., Inc. v. United States, 836 F.2d 721, 726 n. 3 (1st Cir.1988). It is true that the district court did not reconsider whether the discretionary function applied. However, the court ......
  • Request a trial to view additional results
15 books & journal articles
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 48 Nbr. 2, March 2011
    • 22 Marzo 2011
    ...see supra Part ILK (discussing issues common to criminal environmental statutes). (286.) E.g., K.W. Thompson Tool Co. v. United States, 836 F.2d 721, 728-29 (1st Cir. 1988) (holding Administrator of EPA has option of proceeding either criminally or civilly against CWA violator, and civil ac......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 32 Nbr. 2, January 1995
    • 1 Enero 1995
    ...actions for pollution discharge), cert. denied, 112 S. Ct. 177 (1991). (451.) See, e.g., K.W. Thompson Tool Co., Inc. v. United States, 836 F.2d 721, 728 (1st Cir. 1988) (Administrator of EPA has option of proceeding either criminally or civilly against CWA violator and civil action need no......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 33 Nbr. 3, March 1996
    • 22 Marzo 1996
    ...federal actions for pollution discharge), cert. denied, 502 U.S. 859 (1991). (433.) See, e.g., K.W. Thompson Tool Co. v. United States, 836 F.2d 721, 728-29 (Ist Cir. I9g8) (Administrator of EPA has option of proceeding either criminally or civilly against a CWA violator and civil action ne......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 34 Nbr. 2, January 1997
    • 1 Enero 1997
    ...permits separate state and federal actions for pollution discharge). (432.) See, e.g., K.W. Thompson Tool Co. v. United States, 836 F.2d 721, 728-29 (1st Cir. 1988) (Administrator of EPA has option of proceeding either criminally or civilly against a CWA violator and civil action need not p......
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